Amit Kumar Dey :
Efficiency of Judges to protect human rights:
Fundamental rights of citizens which are internationally’ recognized as human rights are enforceable through court. It is the duty of the Judges to ensure justice, protect human rights and in this way establish rule of law in a country. Substantive penal laws can be effective only when the ·procedural laws are exercised efficiently.
Adversarial and Inquisitorial justice system:
The system followed in Bangladesh, India, Pakistan, Sri Lanka and in many other common law countries for dispensation of criminal justice is the adversarial system
The terms “adversarial” and “inquisitorial” are used to describe models of justice systems.
In an adversarial model all parties determine the witnesses they call and the nature of the evidence they give, and the opposing party has the right to cross-examine. The court’s role is confined to overseeing the process by which evidence is given and then weighing up that evidence to. determine whether there is a reasonable doubt.
In an inquisitorial model, the conduct of the trial is largely in the hands of the court. With the dossier of evidence as its starting point, the trial judge determines what witnesses to call and the order in which they are to be heard, and assumes the dominant role in questioning them. [Pizzi, William T, and Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, Stanford Journal of International Law, Vol 32, 1996, p 37.]
The Judge of Instructions in France, Germany:
A strong dissident to the adversarial system Dr. R. Venkataraman, former President of India also held the adversarial system opposite in spirit to our ancient ethos of justice. He stated: “The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with .the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”.
In Germany, section 139 of the Majna Charta states that a breach of the duty of the judge to actively discover the truth amounts to a procedural error which is a valid ground for appeal.
For serious and complex offences the investigation is done under the supervision of an independent judicial officer (In France for example, .the Judge of Instructions) who for the purpose of discovering truth collects evidence for and against the accused.
In reality:
Adversarial or Inquisitorial these terms have no simple or precise meaning and no country now operates strictly within the’ prototype models of an adversarial or inquisitorial system.
Court’s power to secure evidence in the adversary system of trial:
In Shivani Sharma vs Ram Chander And Ors.(The High Court of Delhi FA No.104 of 2003 & CM No.426 of 2003 Date of Decision: 22nd February, 2013) The appellant challenged the award of the Claims Tribunal whereby compensation of 5,50,000 awarded to the appellant. The appellant seeks the enhancement of the award amount.
The accident dated 1st April, 1992 resulted in grievous injuries to the appellant. The appellant was sixteen years old at the time of the accident. She was waiting for her school bus with her father near MadhubanChowk when truck No.DIL-7447, driven rashly and negligently by Respondent no. 1, came from PeeragarhiChowk and hit the left side with a great force and went over the pavement after crushing the left foot of the appellant. The crush, injuries resulted in the amputation of the four toes of the left foot of the appellant
The Claims Tribunal has awarded 5,50,000 to the appellant as per break up given hereunder:-
Medical Expenses : 1,30,000
Future Medical Treatment : 1,00,000
Pain and Suffering : 1,00,000
Loss due to Permanent Disability : 50,000
Loss of Matrimonial Prospects : 1,50,000
Conveyance : 20,000
Total : 5,50,000
The appellant’s father appeared in the witness box as PW 6 and deposed that the appellant underwent six surgeries. He proved the bills. PW-6 proved the FIR under sections 279/338 IPC. PW-6 further deposed that the injuries had caused a setback for her marriage prospects as he had negotiated with 3-4 parties for marriage but it broke down due to disablement.
Vide order dated 30th November, 2012, the appellant was directed to remain present in Court as the Court wanted to see her condition in pursuance to which the appellant appeared in Court on 14th December, 2012 when her condition was seen. The Court also recorded her statement under Section 165 of the Evidence Act to take on record her present condition. Her statement is reproduced hereunder:-
“I suffered grievous injuries in the road accident dated 1st April, 1992. I was aged 16 years at that time. My left foot was crushed under the rear wheel of the offending vehicle .. My four fingers of the left foot were amputated due to the crush injuries. A portion of the skin from my left arm was removed for skin grafting on the sole of the left foot. I cannot keep bare foot on the ground due to the sensitive skin. Since the foot always has to be covered, I have problem of occasional rashes, corns and blisters. Since I cannot do much of the walking, it has also resulted in obesity. I also occasionally suffer bleeding and swelling in my left foot. As such, the injuries suffered by me have affected my career as well as promotion prospects.
Learned counsel for the appellant urged for enhancement of compensation.
Leamed counsel for the respondent No.3 made the following submissions in reply:
This Court has no jurisdiction to record the statement of the appellant under Section 165 of the Indian Evidence Act.
The objection of the respondent’s counsel to the applicability of Section 165 of Indian Evidence Act is absolutely misconceived and was rejected.
Section 165 of the Evidence Act, 1872 reads:
The Judge may, in order to discover or obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
The decision in this Shivani Sharma case: The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost.
In the facts and circumstances of this case, the appeal was allowed and the compensation was enhanced from 5,50,000 to 9,09,220.72 along with interest @ 9% per annum from the date of filing of the claim petition till realization.
Explanation of Section 165:
Cunningham, Secretary to the Council of the Governor -General for making Laws and Regulations at the time of the passing of the Evidence. Act explained the Section as in any case it is highly important that the Judge should be armed with full power enabling him to get at the facts.
Whether Judges are an umpire or referee:
The Supreme Court in Ramchander vs State of Haryana, (1981) 3 SCC 191 observed as follows:- Ifa criminal Court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
Discovery of truth:
Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. Section 172(2) of the CrPC enables the Court to send for the police diaries in a case and use them to aid it in the trial. Section 363 of the Evidence Act provides that while recording evidence, the Judge or Magistrate shall also record such remarks as he thinks necessary regarding the demeanour of the witnesses. Vide 12 BLD (AD) 180 = 43 DLR (AD) 95. In State vs Abdul Aziz (23 DLR 91) it was held that when the defence fails the Judge can himself put question under Section 165 to bring out the discrepancy. Section 540 of the Code of Criminal Procedure are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or over proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness.
Conclusion:
In practice it is seen that when the witnesses are examined the courts rarely ask any questions to the witnesses, fearing that their neutrality may be doubted. Over the years taking advantage of such lacunae large number of criminals are escaping convictions. Judicial activism can prevent such lacunae and establish human rights.
Efficiency of Judges to protect human rights:
Fundamental rights of citizens which are internationally’ recognized as human rights are enforceable through court. It is the duty of the Judges to ensure justice, protect human rights and in this way establish rule of law in a country. Substantive penal laws can be effective only when the ·procedural laws are exercised efficiently.
Adversarial and Inquisitorial justice system:
The system followed in Bangladesh, India, Pakistan, Sri Lanka and in many other common law countries for dispensation of criminal justice is the adversarial system
The terms “adversarial” and “inquisitorial” are used to describe models of justice systems.
In an adversarial model all parties determine the witnesses they call and the nature of the evidence they give, and the opposing party has the right to cross-examine. The court’s role is confined to overseeing the process by which evidence is given and then weighing up that evidence to. determine whether there is a reasonable doubt.
In an inquisitorial model, the conduct of the trial is largely in the hands of the court. With the dossier of evidence as its starting point, the trial judge determines what witnesses to call and the order in which they are to be heard, and assumes the dominant role in questioning them. [Pizzi, William T, and Walter Perron, Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, Stanford Journal of International Law, Vol 32, 1996, p 37.]
The Judge of Instructions in France, Germany:
A strong dissident to the adversarial system Dr. R. Venkataraman, former President of India also held the adversarial system opposite in spirit to our ancient ethos of justice. He stated: “The Adversarial System is the opposite of our ancient ethos. In the panchayat justice, they were seeking the truth, while in adversarial procedure, the Judge does not seek the truth, but only decides whether the charge has been proved by the prosecution. The Judge is not concerned with the truth; he is only concerned with .the proof. Those who know that the acquitted accused was in fact the offender, lose faith in the system”.
In Germany, section 139 of the Majna Charta states that a breach of the duty of the judge to actively discover the truth amounts to a procedural error which is a valid ground for appeal.
For serious and complex offences the investigation is done under the supervision of an independent judicial officer (In France for example, .the Judge of Instructions) who for the purpose of discovering truth collects evidence for and against the accused.
In reality:
Adversarial or Inquisitorial these terms have no simple or precise meaning and no country now operates strictly within the’ prototype models of an adversarial or inquisitorial system.
Court’s power to secure evidence in the adversary system of trial:
In Shivani Sharma vs Ram Chander And Ors.(The High Court of Delhi FA No.104 of 2003 & CM No.426 of 2003 Date of Decision: 22nd February, 2013) The appellant challenged the award of the Claims Tribunal whereby compensation of 5,50,000 awarded to the appellant. The appellant seeks the enhancement of the award amount.
The accident dated 1st April, 1992 resulted in grievous injuries to the appellant. The appellant was sixteen years old at the time of the accident. She was waiting for her school bus with her father near MadhubanChowk when truck No.DIL-7447, driven rashly and negligently by Respondent no. 1, came from PeeragarhiChowk and hit the left side with a great force and went over the pavement after crushing the left foot of the appellant. The crush, injuries resulted in the amputation of the four toes of the left foot of the appellant
The Claims Tribunal has awarded 5,50,000 to the appellant as per break up given hereunder:-
Medical Expenses : 1,30,000
Future Medical Treatment : 1,00,000
Pain and Suffering : 1,00,000
Loss due to Permanent Disability : 50,000
Loss of Matrimonial Prospects : 1,50,000
Conveyance : 20,000
Total : 5,50,000
The appellant’s father appeared in the witness box as PW 6 and deposed that the appellant underwent six surgeries. He proved the bills. PW-6 proved the FIR under sections 279/338 IPC. PW-6 further deposed that the injuries had caused a setback for her marriage prospects as he had negotiated with 3-4 parties for marriage but it broke down due to disablement.
Vide order dated 30th November, 2012, the appellant was directed to remain present in Court as the Court wanted to see her condition in pursuance to which the appellant appeared in Court on 14th December, 2012 when her condition was seen. The Court also recorded her statement under Section 165 of the Evidence Act to take on record her present condition. Her statement is reproduced hereunder:-
“I suffered grievous injuries in the road accident dated 1st April, 1992. I was aged 16 years at that time. My left foot was crushed under the rear wheel of the offending vehicle .. My four fingers of the left foot were amputated due to the crush injuries. A portion of the skin from my left arm was removed for skin grafting on the sole of the left foot. I cannot keep bare foot on the ground due to the sensitive skin. Since the foot always has to be covered, I have problem of occasional rashes, corns and blisters. Since I cannot do much of the walking, it has also resulted in obesity. I also occasionally suffer bleeding and swelling in my left foot. As such, the injuries suffered by me have affected my career as well as promotion prospects.
Learned counsel for the appellant urged for enhancement of compensation.
Leamed counsel for the respondent No.3 made the following submissions in reply:
This Court has no jurisdiction to record the statement of the appellant under Section 165 of the Indian Evidence Act.
The objection of the respondent’s counsel to the applicability of Section 165 of Indian Evidence Act is absolutely misconceived and was rejected.
Section 165 of the Evidence Act, 1872 reads:
The Judge may, in order to discover or obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
The decision in this Shivani Sharma case: The Judge contemplated by Section 165 is not a mere umpire at a wit-combat between the lawyers for the parties whose only duty is to enforce the rules of the game and declare at the end of the combat who has won and who has lost.
In the facts and circumstances of this case, the appeal was allowed and the compensation was enhanced from 5,50,000 to 9,09,220.72 along with interest @ 9% per annum from the date of filing of the claim petition till realization.
Explanation of Section 165:
Cunningham, Secretary to the Council of the Governor -General for making Laws and Regulations at the time of the passing of the Evidence. Act explained the Section as in any case it is highly important that the Judge should be armed with full power enabling him to get at the facts.
Whether Judges are an umpire or referee:
The Supreme Court in Ramchander vs State of Haryana, (1981) 3 SCC 191 observed as follows:- Ifa criminal Court is to be an effective instrument in dispensing justice, the presiding Judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth.
Discovery of truth:
Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. Section 172(2) of the CrPC enables the Court to send for the police diaries in a case and use them to aid it in the trial. Section 363 of the Evidence Act provides that while recording evidence, the Judge or Magistrate shall also record such remarks as he thinks necessary regarding the demeanour of the witnesses. Vide 12 BLD (AD) 180 = 43 DLR (AD) 95. In State vs Abdul Aziz (23 DLR 91) it was held that when the defence fails the Judge can himself put question under Section 165 to bring out the discrepancy. Section 540 of the Code of Criminal Procedure are enacted where under any Court by exercising its discretionary authority at any stage of enquiry, trial or over proceeding can summon any person as a witness or examine any person in attendance though not summoned as a witness.
Conclusion:
In practice it is seen that when the witnesses are examined the courts rarely ask any questions to the witnesses, fearing that their neutrality may be doubted. Over the years taking advantage of such lacunae large number of criminals are escaping convictions. Judicial activism can prevent such lacunae and establish human rights.
